United States:
Law Elevated — PFAS, More Than Just Another Acronym

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THIS ARTICLE ORIGINALLY APPEARED IN THE MISSISSIPPI
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So, what is PFAS? Simply put, PFAS (per and polyfluoronalkyl
substances) is the term used for a family of approximately 5,000
individual man-made fluorinated chemical compounds that are used in
our everyday lives. We have been using products containing older
and newer versions of PFAS chemicals since the 1940s.

PFAS make your eggs not stick to your skillet, your cheesy pizza
not stick to the box, that spilled glass of wine not stain your
carpet, and helps your jacket and shoes keep you dry when you get
caught in the rain. PFAS are present in a host of other products,
too – from popcorn bags and paints to cosmetics, shampoo,
conditioners, hand creams, toothpaste and dental floss.

PFAS chemicals also have a history of wide industrial
applications, including extinguishing petroleum-based fires that
occur typically at airports, refineries, fire training areas and
military installations; enhancing oil recovery by use of chemicals
that lower tension between liquids and generate increased oil
production; inhibiting evaporation during petroleum storage; and
suppressing mist from electroplating operations.

The widespread use of PFAS has given new meaning to the word
"ubiquitous" – PFAS truly are everywhere. One of
the reasons PFAS have become so heavily relied upon is their
stability. These compounds have proven so stable that once they
reach soil and groundwater regulators contend they remain there for
years. The very purpose of the compounds – resiliency –
makes PFAS chemically stable not only in products, but also in
manufacturing waste streams and in the environment.

PFAS enter the environment in a variety of ways, as seen from
these few examples of its use. PFAS remain stable through
manufacturing processes and can enter the environment through
wastewater treatment discharges, waste water sludges, industrial
onsite disposal sites and commercial landfills, and especially
landfills constructed and closed before 1990. That is when solid
waste requirements for liners to protect groundwater were
instituted. Other potential sources of PFAS are wet and dry
atmospheric deposition and surface water runoff from PFAS-impacted
land or runways and highways.

A growing firestorm of focus on PFAS is sweeping the country,
creating a dual challenge for industry to keep up with federal and
state regulatory developments and to evaluate potential litigation
risks associated with using these chemicals in manufacturing
processes and industrial applications.

The science and toxicology surrounding PFAS is unsettled at
best. While the EPA protects public drinking water supplies through
the Safe Drinking Water Act (SDWA) by monitoring for more than 90
drinking water contaminants, that list has never included any of
the PFAS compounds. However, in February of this year, the EPA set
the "health advisory" drinking water level at 70 parts
per trillion for two of the PFAS chemicals that have been
voluntarily phased out of use: perflurooctanoic acid (PFOA) and
perflurooctane sulfonate (PFOS). The EPA has stated that it will
begin the administrative process for establishing a drinking water
standard by the end of this year.

Some states are not waiting on the EPA and have acted on their
own to establish PFAS state-specific drinking water standards. At
last count, 14 states have adopted the EPA health advisory standard
and six states have adopted a standard more stringent than the EPA.
All of these fast moving and dynamic developments yield regulatory
uncertainties and create divergent government approaches across the
country.

PFAS are considered "emerging contaminants" –
chemicals that may pose a potential human health or environmental
risk but do not have regulatory standards. Industry has a solid
record of working through other emerging contaminants in the past
– PCBs, MTBE in gasoline, TCE and 1-4 dioxane, just to name a
few. PFAS seem to pose more of a challenge, not only because of
their resiliency in the environment, but also due to the breadth of
consumer and industrial uses. Lessons learned in the past from
other emerging contaminants will be useful and informative as
industries tackle current PFAS regulatory uncertainties.

We are already beginning to see the EPA and some states attempt
to take a second look at dormant Superfund/CERCLA sites
specifically for PFAS. Industry should be prepared to respond to
the EPA and state environmental agencies as we anticipate
regulatory efforts to bootstrap PFAS inquiries to permitting and
compliance activities by federal environmental programs such as the
National Pollutant Discharge Elimination System, Resource
Conservation and Recovery Act (RCRA), Toxic Substances Control Act
and the SDWA.

Against this murky regulatory backdrop, we are also seeing a
groundswell of civil litigation across the country. Types of
litigation include claims by individuals and businesses for
personal injury, property damage and remediation costs arising from
PFAS found in soil and/or groundwater; claims by
municipalities/counties/public utilities for costs of remediation
and installation of water filtration devices; RCRA citizen suits
alleging imminent and substantial endangerment; state claims for
natural resource damages for groundwater/drinking water
contamination and costs of investigation and remediation by
mid-stream PFAS industrial users as a proactive strike against PFAS
suppliers and manufacturers for increased regulatory and
remediation costs.

Industry has good arguments and defenses against the race to
judgment on PFAS. There currently exists no standard for PFAS under
any federal program that has withstood the rigors of a public
process. The science and toxicological studies remain unsettled.
Adding to the uncertainty, standardized laboratory methods are only
available for drinking water and not for soil.

The alarms are real, however, and are reverberating.
Industry's actions must be proactive, timely and deliberate.
Being proactive includes understanding and identifying the
existence of any regulatory and litigation risks squarely under the
protection of attorney-client privilege. What chemicals are
presently being used? What chemicals should be changed? What has
been used in the past? What are the location and disposal practices
for on-site and/or off-site landfills? Are contracts and
indemnification agreements in place and sufficient? What did the
company know and when did it know it?

The dynamic and unsettled world of PFAS requires a disciplined
and thoughtful approach in maintaining attorney-client privilege
throughout any assessment of risks associated with PFAS. As you can
see, PFAS is not just another acronym. It will be with us for many
years. Now is the time to evaluate all things PFAS in order to be
ready for whatever the future brings.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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